6.  The applicant was born in 1957 and lives in Essen.
7.  On 15 November 1983 the applicant took up the position of organist and choirmaster at the Catholic parish church of Saint Lambertus (“the parish church”) in Essen.
8.  Article 2 of his contract of employment dated 30 January 1984 stipulated, inter alia, that the Ecclesiastical Employment and Remuneration Regulations (see paragraph 37 below), as currently in force, formed an integral part of the contract and that any serious breach of the Church’s principles constituted a material ground for termination of contract without notice, in accordance with Article 42 of those regulations.
9.  After the contract had been approved by the Bishop’s Vicar General, the applicant took the following oath:
“I hereby undertake to discharge my professional duties and to fulfil and observe ecclesiastical obligations.”
10.  From 1 January 1985 onwards he also held the position of head musician in the deanery and was paid a gross monthly salary of 5,688.18 marks (about 2,900 euros).
11.  In 1994 the applicant left his wife, who was the mother of his two children. The separation was made public in January 1995. Since then the applicant has been living with his new partner, who has also been his representative before the employment tribunals and the Court.
12.  On 2 July 1997, after the applicant’s children had told people at their kindergarten that their father was going to have another child, the Dean of the parish discussed the matter with the applicant.
13.  On 15 July 1997 the parish church dismissed the applicant with effect from 1 April 1998 on the ground that he had breached his duty of loyalty under Article 5 of the Catholic Church’s Basic Regulations (the “Basic Regulations” – see paragraph 38 below). In the light of the Catholic Church’s fundamental principles enshrining the sanctity of marriage, the applicant, by having an extramarital relationship with another woman, who was expecting his child, was accused not only of committing adultery but also of bigamy.
14.  Following the applicant’s dismissal his wife petitioned for divorce, which was granted on 13 August 1998.
15.  On 24 July 1997 the applicant took his case to the Essen Employment Tribunal.
16.  On 9 December 1997 the Employment Tribunal granted the applicant’s claim and found that the dismissal of 15 July 1997 had not terminated his contract of employment. Observing the findings of the Federal Employment Court’s judgment of 9 April 1997 (see Obst v. Germany, no. 425/03, §§ 12-19, 23 September 2010), which had applied the principles set out by the Federal Constitutional Court in its leading decision of 4 June 1985 (see paragraph 35 below), it took the view that the applicant’s conduct did not yet (noch nicht) justify his dismissal, under section 1(1) of the Protection from Dismissal Act (see paragraph 36 below). In the Tribunal’s view, he had not been bound by heightened duties of loyalty (gesteigerte Loyalitätsobliegenheiten) because he did not perform pastoral or catechistic duties, did not have a canonical mandate (missio canonica) and was not a member of the managerial staff (leitender Mitarbeiter) within the meaning of Article 5 § 3 of the Basic Regulations. In the Tribunal’s view, the respondent had not proved that the applicant’s duties as head musician of the deanery were equivalent to managerial office; accordingly, pursuant to Article 5 §§ 1 and 2 of the Basic Regulations, the parish church should first have summoned him for a clarification interview (klärendes Gespräch) or issued him with a warning (Abmahnung) before having recourse to the most serious of the disciplinary measures available, his dismissal, especially on account of his length of service in the parish church (fourteen years) and the fact that he had practically no chance of finding work as an organist on the labour-market outside the Catholic Church. The Employment Tribunal observed that an employer could only be dispensed from the obligation to issue a warning in the first instance where the employee could not expect his or her conduct to be tolerated by the employer in view of the seriousness of the breach, or where he or she was not inclined to perform, or capable of performing, his or her professional duties.
17.  In the Tribunal’s view, in so far as the parish church reproached the applicant for having fathered a child out of wedlock, such a shortcoming, after fourteen years of service, did not attain a level of seriousness that justified dismissal on that ground alone without prior warning. Article 5 § 4 of the Basic Regulations expressly required consideration of the question whether a staff member opposed the precepts of the Catholic Church or, whilst recognising its precepts, had not succeeded in complying with them in practice. The Tribunal added that the parish church had failed to prove that the applicant had told the Dean he did not wish to put an end to his new relationship.
18.  On 13 August 1998 the Düsseldorf Employment Appeal Tribunal dismissed an appeal by the parish church. It endorsed the findings of the Employment Tribunal, observing that the reason for dismissal had not been the applicant’s paternity of a child born out of wedlock but rather his long-term extramarital relationship. The Tribunal pointed out that, whilst the applicant’s duties in the Church did not fall under Article 5 § 3 of the Basic Regulations, his dismissal nevertheless remained possible under Article 5 § 4, in view of the proximity between his work and the Church’s proclamatory mission. However, after formally hearing evidence from the applicant as a party to the proceedings, the Appeal Tribunal reached the conclusion that the dismissal had been vitiated by a procedural omission, as the parish church had failed to prove that the Dean had first sought to induce the applicant to put an end to his extramarital relationship. In view of the fundamental significance of the case, the Tribunal granted leave to appeal on points of law before the Federal Employment Tribunal.
19.  On 12 August 1999 the Federal Employment Tribunal quashed the judgment of the Appeal Tribunal. It took the view that Article 5 § 1 of the Basic Regulations, which required a clarification interview, applied not only to dismissals decided under paragraph 2 of that Article (dismissal as the ultimate measure for a serious breach) but also to those based on paragraph 3 (exclusion from post as a matter of principle, and possibility of waiving dismissal on an exceptional basis). The difference between the two paragraphs being merely a question of degree, a clarification interview would be necessary in all cases. In the case before it, the Federal Tribunal took the view that considering the lack of clarity of the ecclesiastical provisions applicable to the applicant as to whether or not his functions entailed heightened duties of loyalty, it had not been clearly established that the applicant could have known with sufficient foreseeability that his dismissal would fall under Article 5 § 3 of the Basic Regulations. If the holding of a clarification interview had been mandatory in the applicant’s case, the absence of such an interview was thus capable of rendering his dismissal wrongful (sozialwidrig). However, the Federal Employment Tribunal observed that the Employment Appeal Tribunal had been mistaken in finding that no interview had been conducted with the applicant. On that point it took the view that the Appeal Tribunal had wrongly omitted to hear evidence also from the Dean, as a party to the proceedings, in order to establish whether or not he had attempted to induce the applicant to put an end to his extramarital relationship and that, accordingly, the judgment appealed against was to be quashed. However, since the facts had not yet been sufficiently established, the Federal Employment Tribunal was not in a position to rule on the question whether the applicant’s dismissal had been justified. As a result, it referred the case back to the Employment Appeal Tribunal.
20.  The Federal Employment Tribunal further observed that, where an employing church entered into employment contracts, it used not only the freedom of contract (Privatautonomie) provided for under ordinary domestic labour law, but also the institutional guarantee of autonomous management enjoyed by the Churches. Church labour law was therefore applicable in conjunction with the ordinary domestic law. The enactment of the Basic Regulations, in particular Articles 4 and 5, reflected the principle of the Catholic Church’s autonomy, as provided for in Article 137 § 3 of the Weimar Constitution (see paragraph 34 below). The application of domestic labour law could not call into question the specificity of ecclesiastical service, which was protected by the Constitution. The Catholic Church was therefore entitled to base its contracts of employment on the model of a Christian service community and, in particular, to require its Catholic employees to recognise and comply with the principles of Catholic religious and moral precepts, as provided for in Article 4 § 1 of the Basic Regulations. As the credibility of the Church might depend on its employees’ conduct and respect for the ecclesiastical order, including in their day-to-day lives, Articles 4 and 5 of the Basic Regulations stipulated the applicable criteria on which to assess contractual duties of loyalty and the seriousness of any breach of such duties.
21.  The Federal Employment Tribunal added that the specificity of the duties of loyalty lay in the fact that they concerned not so much occupational duties as conduct falling within secondary duties or even private life. It noted that the sanctity of marriage formed an integral part of the basic principles of the Catholic Church’s religious and moral precepts. The case concerned not only a relationship and a contract but also a sacrament. Even though adultery was no longer an offence since the new version of the 1983 Code of Canon Law, marriage had retained its indissoluble, perpetual and exclusive nature.
22.  The Federal Employment Tribunal noted that, when employment tribunals applied ordinary labour law, they were bound by the precepts of religious denominations in so far as those precepts took account of the criteria recognised by established Churches. However, in applying those precepts the employment tribunals’ decisions could not run counter to the fundamental principles of law, which included the concepts of “morality” and “public order”. According to the case-law of the Federal Constitutional Court (see paragraph 35 below), it was for the employment tribunals to ensure that religious denominations did not impose excessive requirements of loyalty on their employees. The Federal Employment Tribunal found that the beliefs of the Catholic Church regarding fidelity in marriage were not at odds with the fundamental principles of law. Marriage enjoyed special protection under Article 6 of the Basic Law and adultery was regarded as a serious fault in a civil law context. The Tribunal observed that it had, moreover, already found in its judgment of 24 April 1997 that adultery constituted a serious fault in the view of the Catholic Church (see Obst, cited above, § 15).
23.  The Federal Employment Tribunal concluded that the Employment Appeal Tribunal had rightly considered that the applicant’s conduct could be characterised as a serious personal moral fault, within the meaning of Article 5 § 2 of the Basic Regulations, and that it therefore constituted a ground for dismissal for the purposes of section 1(2) of the Protection from Dismissal Act. It noted that the applicant’s opinion that only a new marriage – which, according to the Catholic Church’s belief would be null and void – could be regarded as a serious breach was not substantiated by any provision of the Basic Regulations or other instruments.
24.  On 3 February 2000, after the case had been referred back to it, the Düsseldorf Employment Appeal Tribunal upheld the parish church’s appeal against the judgment of the Employment Tribunal of 9 December 1997. After hearing evidence from the Dean as a party to the proceedings, and with the applicant having acknowledged that he had, at his interview of 2 July 1997 with the Dean, described as permanent his new relationship with his lawyer, the Tribunal held that the parish church had dismissed him in accordance with Article 5 § 1 of the Basic Regulations. According to the Dean’s statements at the hearing – which the Tribunal found more credible than those of the applicant – there had indeed been an interview between the two parties. In view of the applicant’s inflexible position as regards his new relationship, the Dean and the parish church had rightly considered that a prior warning would be superfluous.
25.  The Employment Appeal Tribunal added that it was not unaware of the consequences of the applicant’s dismissal, which would most likely prevent him from exercising his profession and from paying the same amount in child maintenance. However, it admitted that the parish church could not continue to employ the applicant without losing all credibility in relation to the mandatory nature of its religious and moral precepts. In this connection it was necessary to take into account the fact that, even if the applicant was not among those members of staff that were bound by heightened duties of loyalty under Article 5 § 3 of the Basic Regulations, his activity was closely related to the Church’s proclamatory mission. It was thus hardly conceivable vis-à-vis the general public that the applicant and the Dean could continue to perform the liturgy together. According to the Employment Appeal Tribunal, the interests of the parish church prevailed by far over those of the applicant.
26.  On 29 May 2000 the Federal Employment Tribunal found inadmissible a request by the applicant to appeal on points of law.
27.  On 8 July 2002 the Federal Constitutional Court disallowed a constitutional complaint by the applicant (no. 2 BvR 1160/00) on the ground that it had insufficient chances of succeeding. In the Federal Court’s opinion, the decisions appealed against did not raise any constitutional issues in the light of its 4 June 1985 judgment (see paragraph 35 below).
28.  Since September 2002 the applicant has been employed as choirmaster for a Protestant church in Essen and he also directs three choirs on a voluntary basis.
29.  On 22 December 1997 the parish church issued a second dismissal with effect from 1 July 1998. On 4 December 1998 the Employment Tribunal rejected an application for annulment lodged by the applicant. To date those proceedings are still pending before the Düsseldorf Employment Appeal Tribunal.
30.  The status of Churches and religious societies is governed mainly by Articles 137 to 141 (known as the “Church Articles” – Kirchenartikel) of the Weimar Constitution of 11 August 1919, as incorporated into the Basic Law by Article 140 of that Law. A large number of Churches and religious societies, including the Catholic Church (about 24.9 million members) and the Protestant Church of Germany (about 24.5 million members), commonly known as the two “big Churches” (Grosskirchen), have the status of public-law entity but are not, however, part of government. Other religious denominations have legal capacity under civil law. The status of public-law entity enables the Churches concerned, among other things, to receive Church tax and to employ public servants.
31.  The Catholic Church and the Protestant Church employ over one million individuals, particularly in their charities, making them the second largest employer in Germany after the State. The two main charities alone, Caritas (Catholic) and Diakonie (Protestant), employ respectively almost 500,000 and 450,000 “staff members”. Their activities concern mainly the running of hospitals, schools, kindergartens, homes for children and the elderly and advice centres (for HIV sufferers, migrants, victims of domestic violence). The Catholic and Protestant Churches regard their social activities as being part of their proclamatory mission and a way of putting the “love thy neighbour” commandment into practice.
32.  The law governing employment relationships between Churches and their public servants is based on civil-service law. As regards other employees, the ordinary domestic labour law will apply, but with a certain number of exceptions stemming from the Churches’ right of autonomy. As a result of that right they may, among other things, impose specific duties of loyalty on their employees (see below). Moreover, in terms of industrial-relations law, Churches and their institutions are not bound by the domestic right of employee participation. Considering that their activities, especially charity work, are based on the model of a Christian service community, formed by the whole body of staff, they do not accept legal structures based in principle on an opposition between employer and employee. The Catholic Church and most of the Protestant denominations thus refuse to enter into collective agreements with trade unions, and the right to strike or lock-out are non-existent in their institutions. However, they have created their own systems of representation and staff participation in management.
33.  As regards their financing, Churches and religious societies having the status of public-law entity are entitled to receive Church tax, which constitutes a significant portion (about 80%) of their total budget. Church tax is levied by the State tax authorities on behalf of Churches and religious societies, which in return pay the State 3 to 5% of their tax revenue. This is based on income tax, amounting to between 8 and 9% thereof. It is paid directly to the Treasury by the taxpayer’s employer together with income tax. In this connection municipal authorities issue “wage-tax cards” (Lohnsteuerkarte) that employees are required to give their employers. The card contains information about the employee, including the tax regime, rebates for dependent children and membership of a Church or religious society entitled to receive Church tax.
34.  Article 140 of the Basic Law provides that Articles 136-139 and 141 of the Weimar Constitution of 11 August 1919 form an integral part of the Basic Law. Article 137 reads as follows:
Article 137
“(1)  There shall be no State church.
(2)  The freedom to form religious societies shall be guaranteed. ...
(3)  Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.
(4)  Religious societies shall acquire legal capacity in accordance with the general provisions of civil law.
(5)  Religious societies shall remain entities under public law in so far as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and size of membership provide guarantees of long-term existence ...
(6)  Religious societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land.
(7)  Associations whose purpose is to foster a philosophical belief in the community shall have the same status as religious societies.
(8)  Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land.”
35.  On 4 June 1985 the Federal Constitutional Court delivered a leading judgment on the validity of dismissals of Church employees on the grounds of a breach of their duty of loyalty (nos. 2 BvR 1703/83, 1718/83 and 856/84, judgment published in the Reports of Judgments and Decisions of the Federal Constitutional Court, volume 70, pp. 138-73). The subject matter of the constitutional complaints was, on the one hand, the dismissal of a doctor practising in a Catholic hospital on account of a view he had expressed on abortion, and on the other, the dismissal of a commercial employee of a youth home run by a Catholic monastic order because he had left the Catholic Church. The two dismissed employees had been successful in proceedings before the employment tribunals and the employing Churches had then taken their cases to the Federal Constitutional Court, which allowed their complaints.
The Federal Constitutional Court observed that the right of religious societies to manage their affairs autonomously within the limit of the general law, as enshrined in Article 137 § 3 of the Weimar Constitution, applied not only to the Churches, but also, regardless of legal form, to any institution associated with them and participating in their mission. This constitutional guarantee included the right for the Churches to choose the staff they needed for the fulfilment of their mission and, accordingly, to enter into employment contracts. When the Churches chose to exercise their freedom of contract, like everyone else, then ordinary domestic labour law became applicable. However, the applicability of labour law did not have the effect of removing employment relations from the domain of a Church’s own affairs. The constitutional guarantee of autonomy (Selbstbestimmungsrecht) afforded to Churches affected the content of contracts of employment. A Church could thus, in the interest of its own credibility, base its contracts of employment on the model of a Christian service community, and, accordingly, require its employees to respect the general principles of its dogmatic and moral doctrines and the basic duties applicable to all its members. That did not mean, however, that the legal status of a Church’s employee became “clericalised”. It merely concerned the nature and scope of duties of loyalty stemming from employment contracts. The civil-law employment relationship was not thereby transformed into an ecclesiastical status that subsumed the employee and dominated his entire private life.
The Federal Constitutional Court further observed that the freedom of the Churches to manage their own affairs was circumscribed by the general law, including those provisions that granted protection against wrongful dismissal such as section 1 of the Protection from Dismissal Act and Article 626 of the Civil Code. However, those provisions did not automatically prevail over the so-called “Church Articles” of the Weimar Constitution. It was thus appropriate to balance the different rights, with particular weight being accorded to the Churches’ interpretation of their own faith and legal order. The Federal Constitutional Court continued as follows:
“It follows that, whilst the constitutional guarantee of the Churches’ right to manage their affairs autonomously permits them to base their contracts of employment on the model of a Christian service community and to lay down the basic ecclesiastical duties, such guarantee must be considered in terms of constitutional law and its scope must be stipulated when it comes to applying the provisions concerning protection against dismissal to dismissals for a breach of duties of loyalty. An application of labour law that did not take account of the duties of Church employees to respect the fundamental principles of Christian life that the Churches are entitled to impose would be at odds with their constitutional right of autonomy.
Consequently, in the event of a dispute, the employment tribunals must apply the criteria laid down by the Churches concerning the assessment of the contractual duties of loyalty since the Constitution affords to Churches the right to decide on such matters autonomously. It is thus in principle for the established Churches (verfasste Kirchen) to determine what is required by ‘the credibility of the Church and its proclamation’, what ‘specific ecclesiastical tasks’ are, what ‘proximity’ to the Church means, what ‘the basic principles of religious and moral precepts are’ and what constitutes a breach – a serious breach in some cases – of its precepts. Matters governed by the Churches’ right of autonomy also include the question whether and how a scale of duties of loyalty must be applied to staff members working in the service of a Church.
In so far as such principles correspond to the criteria laid down by the established Churches, a question that must be referred by the tribunal to the Church authorities in case of doubt, the employment tribunals will be bound by them, unless by applying them they put themselves in conflict with the fundamental principles of law, such as the general prohibition of arbitrariness, the principle of morality, and public order. It is therefore a matter for the domestic courts to ensure that ecclesiastical institutions do not impose on their staff unacceptable demands of loyalty that might, in some cases, be at odds with the very principles of the Church ...
If the tribunal reaches the conclusion that there has been a breach of such duties of loyalty, it must ascertain whether that breach objectively justifies dismissal under section 1 of the Protection from Dismissal Act and Article 626 of the Civil Code ...”
36.  Section 1(1) and (2) of the Protection from Dismissal Act (Kündigungsschutzgesetz) provides, in particular, that a dismissal is socially unjustified unless based on reasons related to the employee himself or his conduct.
Article 626 of the Civil Code allows each party to the contract to terminate the employment relationship without notice on serious grounds.
37.  Article 2 § 2 (b) of the Ecclesiastical Employment and Pay Regulations (Kirchliche Arbeits- und Vergütungsverordnung) for the Dioceses (or Archdioceses) of Aachen, Essen, Cologne (Köln), Münster (part of North Rhine-Westphalia) and Paderborn, dated 15 December 1971, as in force until 1 January 1994, required that the way of life of the employee and the members of his household be compliant with the basic principles of the religious and moral precepts of the Catholic Church.
Article 6 provided that respect, manifested in words and deeds, for the principles of the Catholic Church, and a conduct in line with that required by ecclesiastical staff members, formed part of the employee’s duties.
Article 42 § 1, in the version currently in force, provides in particular that a serious ground justifying dismissal without notice is constituted by a patent breach (großer äusserer Verstoß) of ecclesiastical principles, for example the fact of leaving the Church (Kirchenaustritt).
38.  Articles 4 and 5 of the Basic Regulations of the Catholic Church for ecclesiastical service in the context of ecclesiastical employment relationships (Grundordnung der Katholischen Kirche für den kirchlichen Dienst im Rahmen kirchlicher Arbeitsverhältnisse), which were adopted by the Episcopal Conference of German Bishops on 22 September 1993 and which came into force in the Diocese of Essen on 1 January 1994, read in their relevant parts as follows.
 
Article 4Duties of loyalty
“1.  Catholic employees [Mitarbeiterin und Mitarbeiter] are required to respect and comply with the basic principles of the Catholic Church’s religious and moral precepts. The example of personal life led in conformity with those principles is seen as important in particular for employees who perform pastoral, catechistic or educational duties, or who have a canonical mandate [Missio canonica]. These duties also apply to senior management staff.
... 4.  Employees shall refrain from any hostile attitude towards the Church. They shall not undermine, by their personal way of life or professional conduct, the credibility of the [Catholic] Church and of the institution for which they work.”
Article 5
Breaches of duties of loyalty
“1.  Where an employee no longer satisfies the employment criteria, the employer shall seek by discussion to prevent the breach in question with permanent effect. The employer will have to ascertain whether, to put an end to the said breach of duty, a clarification interview [klärendes Gespräch], a warning [Abmahnung], a formal reprimand, or any other measure (relocation, contractual amendment) would be appropriate. Dismissal may be envisaged in the last instance. 2.  The Church shall regard as serious and as justifying dismissal on specifically ecclesiastical grounds [Kündigung aus kirchenspezifischen Gründen] the following breaches of the duty of loyalty:
– a breach of the duties provided for in Articles 3 and 4 hereof, in particular the fact of leaving the Church and public defence of positions that run counter to the Catholic Church’s guiding principles (for example those concerning abortion), and serious personal moral misconduct [schwerwiegende persönliche sittliche Verfehlungen];
– the fact of entering into a marriage that is null and void in the light of the Church’s faith and legal order, as interpreted thereby ... 3.  The existence of one of the forms of conduct referred to under paragraph 2 of the present Article, and which are regarded as a general rule as grounds for dismissal, shall preclude the possibility of maintaining an employee in his or her post if the employee performs pastoral or catechistic duties, is a member of the managerial staff, or has a canonical mandate [Missio canonica]. The employer may, on an exceptional basis, waive dismissal where the circumstances of the case indicate that such a measure is inappropriate. 4.  Where the employee belongs to one of the categories referred to in paragraph 3 [of the present Article], the possibility of maintaining the employee in his or her post will further depend on the circumstances of the case, in particular the extent of the risk that the credibility of the Church or its institution might be called into question, the burden placed on the ecclesiastical service community, the nature of the institution and its task, the institution’s proximity to the Church’s proclamatory mission, the employee’s position within the institution and the nature and seriousness of the relevant breach of the duties of loyalty. It will also be necessary to consider whether the employee has opposed the precepts of the Church or whether, whilst recognising those precepts, has not succeeded in complying with them in practice.”
39.  Under section 2(3) of the Ecclesiastical Law on Religious Music[1] of 15 June 1996, a church musician employed by the Protestant Church must in principle be affiliated with a denomination which is a member of the Protestant Church of Germany or part of an ecclesiastical union therewith. Under section 21(2) of that Law, in conjunction with section 7(1) of the implementing law of 13 November 1997[2], a person not fulfilling this condition may nevertheless be appointed, on an exceptional basis, to a post of church musician in secondary employment (Nebenamt) if he or she is affiliated with a Christian denomination that is part of the Labour Association of Christian Churches in Germany (Arbeitsgemeinschaft christlicher Kirchen in Deutschland), to which the Roman Catholic Church belongs. Under the Regulations of 18 November 1988 on the employment of church musicians[3], the average working week of such musicians in secondary employment represents less than eighteen hours.
40.  Directive 2000/78/EC of the Council of the European Union of 27 November 2000 (“the Directive”), establishing a general framework for equal treatment in employment and occupation, reads as follows:
Recital 24
“The European Union in its Declaration No. 11 on the status of Churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of Churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.”
Article 4
Occupational requirements
“1.  ... Member States may provide that a difference of treatment which is based on a characteristic related to [religion or belief] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2.  Member States may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within Churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. ...
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of Churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”
41.  The German legislature transposed the Directive into national law by means of the General Equal Treatment Act (Gesetz zur Umsetzung europäischer Richtlinien zur Verwirklichung des Grundsatzes der Gleichbehandlung – Allgemeines Gleichbehandlungsgesetz) of 14 August 2006. Section 9 thereof reads as follows:
“(1)  Without prejudice to the provisions of section 8 [hereof], a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies, by institutions affiliated therewith, regardless of legal form, or by associations whose purpose is to foster a religion or belief in the community, where a justified occupational requirement is constituted by a given religion or belief, having regard to the employer’s own perception, in view of the employer’s right of autonomy or by reason of the nature of its activities.
(2)  The prohibition of differences in treatment based on religion or belief shall not affect the right of the religious societies, institutions affiliated therewith, regardless of legal form, or associations whose purpose is to foster a religion or belief in the community, as referred to in the previous subsection, to require their employees to demonstrate loyal and sincere conduct within the meaning of their own perception.”
42.  On 31 January 2008 the European Commission sent a letter of formal notice to the Federal Republic of Germany (procedure no. 2007/2362) concerning the transposition of Directive 2000/78/EC into German law and concerning, among other things, “dismissals not covered by anti-discrimination law”. It noted that, whilst the Directive permitted a difference in treatment only if the religion or belief constituted a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos, section 9(1) of the General Equal Treatment Act also provided for different treatment when the religion or belief constituted an occupational requirement on the basis of its right of autonomy and the religious society’s or association’s own perception, without necessarily having regard to the nature of the activity. According to the European Commission, such a difference not being covered by the terms of the Directive, this manner of transposition did not fulfil the Directive’s objectives. Such transposition would enable a religious society to define an occupational requirement purely on account of its right of autonomy, without the requirement undergoing a proportionality test in the light of the actual activity. In addition, whilst Article 4 § 2 of the Directive presented the question in terms of genuine and determining occupational requirements, section 9(1) of the General Equal Treatment Act had reduced that notion to one of justified occupational requirements, which was a weaker standard than that of the Directive. The European Commission further observed that, whilst an organisation’s particular ethos played a role in determining the occupational requirement, it should not be the sole criterion, otherwise German legislation might not guarantee such a difference in treatment and, even as regards ordinary assistance activities, specific requirements related to religious affiliation might be imposed.
On 29 October 2009 the European Commission sent a reasoned opinion to Germany. It was stated in a press release published on the same day (IP/09/1620) that in its opinion the Commission had pointed out, among other things, that protection against discriminatory dismissals was not covered by German anti-discrimination law. The government’s reply to the letter of formal notice, the Commission’s reasoned opinion and the government’s reply to that opinion have not been made public to date.[4]